Conscience, discretion and the creation of property rights

This paper considers the utility of the concept of conscience or unconscionable conduct as a contemporary rationale for intervention in two principles applied where a person seeks to renege on an informal agreement relating to land: the principle in Rochefoucauld v Boustead; and transfers 'subject to' rights in favour of a claimant. By analysing the concept in light of our current understanding of the nature of judicial discretion and the use of general principles, it responds to arguments that unconscionability is too general a concept on which to base intervention. In doing so, it considers the nature of the discretion that is actually in issue when the court intervenes through conscience in these principles. However, the paper questions the use of constructive trusts as a response to unconscionability. It argues that there is a need, in limited circumstances, to separate the finding of unconscionability from the imposition of a constructive trust. In these limited circumstances, once unconscionability is found, the courts should have a discretion as to the remedy, modelled on that developed in the context of proprietary estoppel. The message underlying this paper is that many of the concerns expressed about unconscionability that have led to suggestions of alternative rationales for intervention can in fact be addressed whilst retaining an unconscionability analysis. Unconscionability remains a preferable rationale for intervention as it provides a common thread that links apparently separate principles and can assist our understanding of their scope.

The inequality curse: constraints and political discretion

We live in an unjust world characterized by economic inequality. No liberal theory of justice is able to justify it. Inequality is not “solved” with equality of opportunity or meritocracy. Nor by the socialist and republican critique. The poor will have to count with them and with democracy to make social progress reality. In their political struggle, they will face one economic constraint: the expected profit rate must remain attractive to business investors. Yet, giving that technological progress in increasingly capital-saving, this economic constraint does not obstruct that wages grow above the productivity rate and inequality is reduced. What really is an obstacle to social justice in the rich countries is, on one hand, the power that capitalist rentiers retain and financists acquired, and, on the other, the competition originated in low wage countries.

Sentencing Guidelines, Judicial Discretion, And Social Values

This paper studies the institutional structure of criminal sentencing, focusing on the interaction between legislatures, which set sentencing ranges ex ante, and judges, who choose actual sentences from within those ranges ex post. The key question concerns the optimal degree of judicial discretion, given the sequential nature of the process and the possibly divergent interests of legislatures and judges regarding the social function of criminal punishment. The enactment of sentencing reform in the 1970s and 80s provides both a context for the model and an opportunity to evaluate its conclusions.

Disquieting Discretion: Race, Geography & the Colorado Death Penalty in the First Decade of the Twenty-First Century

This Article demonstrates through original statistical research that prosecutors in Colorado were more likely to seek the death penalty against minority defendants than against white defendants. Moreover, defendants in Colorado’s Eighteenth Judicial District were more likely to face a death prosecution than defendants elsewhere in the state. Our empirical analysis demonstrates that even when one controls for the differential rates at which different groups commit statutorily death-eligible murders, non-white defendants and defendants in the Eighteenth Judicial District were still more likely than others to face a death penalty prosecution. Even when the heinousness of the crime is accounted for, the race of the accused and the place of the crime are statistically significant predictors of whether prosecutors will seek the death penalty. We discuss the implications of this disparate impact on the constitutionality of Colorado’s death penalty regime, concluding that the Colorado statute does not meet the dictates of the Eighth Amendment to the Constitution.

Discretion and Accountability: The ESMA Judgment and the Meroni Doctrine. Bruges European Economic Research (BEER) Papers 30/2014

This paper assesses the effectiveness of the Meroni doctrine in the light of the recent judgment in the ESMA case. The first part explains in detail the problem of delegation of powers in the EU from the perspective of the principal-agent theory and complements it with the analysis of the trade-off between different levels of independence and accountability of agencies. A simple economic model is developed to illustrated the relationship between the independence and accountability of an agency. It shows that it is the accountability mechanism that induces the agent to act, rather than the extent of his independence. The paper also explains the inter-temporal interactions between the principal and the agent on the basis of the incentives in place for the different players. The second part is devoted to analysis of the functioning of ESMA in the context of its delegated powers. After the presentation of main aspects of the regulatory framework establishing ESMA, the paper continuous with an analysis and interpretation of the discretionary powers of ESMA. The rather rigid position of the Court of Justice in relation to the Meroni doctrine seems to be unsuitable to delegation of complex regulatory tasks. This is particularly evident in the case of financial markets. Finally, the judgment does not examine in any detail whether and how the principals - i.e. the EU and Member States - are best able to evaluate the quality of ESMA decisions and regulations and whether there are different but more effective accountability mechanisms.

Room to move? Professional discretion at the frontline of welfare-to-work

Outcomes of social policies have always been mediated by the discretionary agency of front-line staff, processes which nevertheless have received insufficient attention in policy evaluation and in the social policy literature more broadly. This article takes the case example or the policy reforms associated with the Australian government's welfare-to-work agenda. Drawing on two discreet research projects undertaken at different points in the policy trajectory, the practices of social workers in Centrelink - the Commonwealth government's primary service delivery agency involved in welfare-to-work - is examined. Centrelink social workers have been and remain one of the core groups of specialist staff since the Department's inception in the late 1940s, working to improve the well being Of people in receipt of income security. Their experiences of the recent past and their expectations of the future of their professional practice as welfare reform becomes more entrenched are canvassed. In summary, the discretionary capacity of the Centrelink social workers to moderate or shape the impact of policy on income security recipients is steadily eroding as this group of professionals is increasingly captured by the emerging practices of workfare.

Controlling contractual discretion

In 1993 Leggatt L.J. said in Abu Dhabi National Tanker Co. v. Product Star Shipping Ltd. (The Product Star) [1993] 1 Lloyds Rep. 397, 404: Where A and B contract with each other to confer a discretion on A, that does not render B subject to A’s uninhibited whim. In my judgment, the authorities show that not only must the discretion be exercised honestly and in good faith, but, having regard to the provisions of the contract by which it is conferred, it must not be exercised arbitrarily, capriciously or unreasonably.

Professionals, discretion and public sector reform in the UK:re-visiting Lipsky

Purpose – Seeks to examine how far Michael Lipsky's theory of discretion as it relates to public sector professionals as “street-level bureaucrats” is still applicable in the light of public sector reform and in particular the introduction of increased managerial control over professionals. Design/methodology/approach – The main thesis in Lipsky's work, Street-Level Bureaucracy, that street-level bureaucrats devise their own rules and procedures to deal with the dilemmas of policy implementation is linked to public sector reform over the past 25 years or so. The article differentiates between three forms of discretion, rule, task and value and assesses the extent to which these different forms of discretion have been compromised by reform. Examples are drawn principally from the literature on school teachers and social workers Findings – The findings suggest that the rule-making (hence bureaucratic) capacity of professionals at street-level is much less influential than before although it is questionable whether or not the greater accountability of professionals to management and clarity of the targets and objectives of organisations delivering public policy has liberated them from the dilemmas of street-level bureaucracy. Research limitations/implications – The work has focussed on the UK and in particular on two professions. However, it may be applied to any country which has undergone public sector reform and in particular where “new public management” processes and procedures have been implemented. There is scope for in-depth studies of a range of occupations, professional and otherwise in the UK and elsewhere. Practical implications – Policy makers and managers should consider how far the positive aspects of facilitating discretion in the workplace by reducing the need for “rule-making” to cope with dilemmas have been outweighed by increased levels of bureaucracy and the “de-skilling” of professionals. Originality/value – Lipsky's much cited and influential work is evaluated in the light of public sector reform some 25 years since it was published. The three forms of discretion identified offer the scope for their systematic application to the workplace.

Managerial discretion in distressed firms

This study examines the earnings management behaviour of 455 distressed US firms that filed for bankruptcy during the period 1986-2001. We examine (a) possible earnings management during the years prior to bankruptcy-filing, (b) whether qualified audit opinions cause conservative earnings management behaviour, (c) whether earnings management differs between firms that discontinued operations and firms that survived thereafter, and (d) the effect of earnings management on subsequent stock returns. Our results are consistent with downwards earnings management 1 year prior to the bankruptcy-filing. Results also show that (a) firms receiving unqualified audit opinions 4 or 5 years prior to the bankruptcy-filing event manage earnings upwards in subsequent years, consistent with Rosner [2003. Earnings manipulation in failing firms. Contemporary Accounting Research 20, 361-408], (b) more conservative earnings management seems to be related to the qualified audit opinions rendered in the preceding year, (c) firms with long-term negative accruals the year of bankruptcy-filing have a greater chance to survive thereafter, and (d) more pronounced (negative) earnings management is associated with more negative (next year's) subsequent returns. © 2007 Elsevier Ltd. All rights reserved.

Loan loss provisions, bank valuations and discretion : a comparative study between conventional and Islamic banks

This study investigates the use of reported loan loss provisions (LLP) by investors in their valuations of banks within the Middle East and North Africa region between the years 2006 and 2011. We decompose LLP into discretionary and non-discretionary components to test for differential valuations in the two banking sectors. We use alternative criteria to define the components of LLP in banks: loan quality/size and earnings management/ manipulation incentives. We employ a price-level valuation model estimated using two-stage analyses. We find that LLP has positive value relevance to investors in both banking sectors. Investors in Islamic banks price the discretionary component relatively lower than their conventional counterparts. We attribute this result to differences in product and governance structures as well as to the religious perception of Islamic banking. In both banking sectors, investors construe an increase in the non-discretionary component as irrelevant valuation information. Our results are relevant to bank regulators in showing the signalling effect of LLP to bank value and stability.

Decision support and the criminal justice system:an assessment of the potential for utilising technological decision support in undertaking the prosecutorial decision

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Loan loss provisions, bank valuations and discretion:a comparative study between conventional and Islamic banks

This study investigates the use of reported loan loss provisions (LLP) by investors in their valuations of banks within the Middle East and North Africa region between the years 2006 and 2011. We decompose LLP into discretionary and non-discretionary components to test for differential valuations in the two banking sectors. We use alternative criteria to define the components of LLP in banks: loan quality/size and earnings management/manipulation incentives. We employ a price-level valuation model estimated using two-stage analyses. We find that LLP has positive value relevance to investors in both banking sectors. Investors in Islamic banks price the discretionary component relatively lower than their conventional counterparts. We attribute this result to differences in product and governance structures as well as to the religious perception of Islamic banking. In both banking sectors, investors construe an increase in the non-discretionary component as irrelevant valuation information. Our results are relevant to bank regulators in showing the signalling effect of LLP to bank value and stability. © 2013 Elsevier B.V.

Discretion and control in education:the teacher as street-level bureaucrat

This article assesses the impact of education reform and the new public management (NPM) on the discretion of school teachers. The focal point of the study is Michael Lipsky's theory of discretion which casts public service professionals and others involved in service delivery as 'street-level bureaucrats' because their high degree of discretionary rule-making power enabled them to effectively make policy as well as implement it. The article considers the relationship between education reform and the NPM and focuses on the increased emphasis on skills-based teaching and changes in management and leadership in schools. The literature and survey of teachers demonstrate that discretion in the workplace has been eroded to such an extent due to a high degree of central regulation and local accountability as to question the applicability of Lipsky's model. The findings are based on the literature and a small survey undertaken by the author. © 2007 BELMAS.